Archive/File: imt/tgmwc/tgmwc-18/tgmwc-18-174.01 Last-Modified: 2000/09/15 [Page 206] HUNDRED AND SEVENTY-FOURTH DAY TUESDAY, 9th JULY, 1946 THE MARSHAL: May it please the Tribunal, the defendants Hess and Fritsche are absent. THE PRESIDENT: I have an order to read. The Tribunal orders: 1. Applications for witnesses for organizations to be heard by the Tribunal in open court in accordance with paragraph five of the Tribunal's order of March 13th, 1946, should be made to the General Secretary as soon as possible, and in any case not later than the 20th of July. 2. The Tribunal believes that so much evidence has already been taken and so wide a field has been covered that only a very few witnesses need be called for each organization. That is all. DR. NELTE (counsel for the defendant Keitel): Mr. President, gentlemen ,of the Tribunal, yesterday I dealt with the problem of Keitel and the Russian campaign. Now I recall to you what Keitel said in the witness-box concerning the so- called ideological orders: "I knew their content. In spite of my personal misgivings I passed them on without letting myself be deterred by the possibility of serious consequences." I wanted to point that out in order to make what I have to say now more comprehensible. (Page 112, the fourth paragraph). In the course of time there grew and spread throughout the army the opinion that Field-Marshal Keitel was a "yes-man," a tool of Hitler, and that he was betraying the interests of the Wehrmacht. These generals did not see nor were they interested in the fact that this man was fighting a constant battle day after day, on every possible kind of problem, with Hitler and the forces which were influencing him on all sides. This picture which has been drawn here in detail and which definitely did not apply to Keitel, especially not in the sphere of strategic operations, planning and execution, became a distorted picture the effect of which was felt up to and in this trial; perhaps not without the fault of the defendant Keitel himself. As to the justification of his conception of duty there can in principle be no argument. It has been confirmed here by the witness Admiral Schulte- Monting to be true also in the case of the defendant Admiral Raeder There can be no doubt that the rest of the admirals and generals were (in principle) of the same point of view, that it was impossible in military spheres to criticise before subordinates the decision of a superior as expressed in an order, even if one had misgivings about that order. One may object that every principle, every basic rule must be interpreted and applied in a reasonable way, that every exaggerated form of a good principle means its devaluation. In the case of Keitel this objection affects the problem of his responsibility and guilt. Does the non-recognition of the point at which a principle, correct in itself, is being carried to excess and so endangering what it has been established to protect constitute guilt? In the case of Keitel we must consider this crucial question from the point of view of a soldier. The thoughts and ideas which the defendant Keitel had in this connection were the following: [Page 207] It is incontestable that the principle of obedience is necessary for every army; one may say that obedience - in civilian life only a virtue, and therefore perhaps less strictly applied - must be the essential element of a soldier's character, because without this principle of obedience the aim which is to be accomplished by the army could not be achieved. This aim, the security of the country, the protection of the people, the maintenance of the most precious national possessions - is so sacred that the importance of the principle of obedience cannot be valued highly enough. Hence the duty of those called upon to preserve that national institution, the Wehrmacht, in the light of its higher task, is to emphasize the importance of obedience. But what the general demands of the soldier, because it is indispensable, must hold good for himself too. The same applies to the principle of obedience. It would be dangerous to weaken an order or even an essential principle by, from the beginning, mentioning exaggerations and taking them into consideration. That would leave the principle of decision to the judgement of the individual. There might be cases where the decision depends or must be made dependent on actual circumstances. In theory, that would lead to a devaluation or even an abrogation of the principle. In order to prevent this danger and to eliminate any doubt as to its absolute importance, the principle of obedience has been changed in military life into one of "absolute obedience" and embodied in the oath of allegiance. This, too, is valid for the general as well as for the common soldier. The defendant Keitel not only grew up in this school of thought, but during the thirty-seven years of his military service, up to 1938, including the First World War, he had become convinced that this principle of obedience was the strongest pillar upon which the Wehrmacht, and thereby the security of the country, rests. Deeply imbued with the importance of his profession, he had served the Kaiser, Ebert, and von Hindenburg in accordance with this principle. They, as the representatives of the State, had to a certain extent an impersonal and symbolic effect on Keitel, and Hitler, from 1934, at first appeared in the same light to him, i.e., merely as representing the State, without any personal touch, in spite of the fact that his name was mentioned in the oath of allegiance. Then in 1938 Keitel as Chief of the OKW came into the immediate circle and the personal sphere of Hitler. It seems to me important for further explanation, and for judgement on Keitel, to bear in mind that he, due to his soldierly conception of duty, which was specially developed in him, and to the pronounced feeling of soldierly obedience, was now exposed to the direct effects of Hitler's personality. I am inclined to assume that Hitler had clearly realised, in the preliminary discussions with Keitel which led to the Fuehrer order of 4th February, 1938, that Keitel was the type of person he had included in his calculations A man upon whom he could rely at any time as a devoted and faithful soldier; whose bearing fitted him to be a worthy representative for the Wehrmacht in his sphere; who by virtue of his good judgement was an extraordinarily able organiser (according to the report of Field-Marshal von Blomberg). Keitel himself has admitted that he sincerely admired Hitler and that the latter subsequently attained a strong influence over him and brought him completely under his spell. This must be borne in mind if we wish to understand how Keitel could have made out and transmitted orders from Hitler which were irreconcilable with the traditional conceptions of a German officer, such as, for instance, the orders referred to in Documents C-50, PS-447, etc., submitted by the Soviet prosecution. By exploiting the willingness to fight for Germany which might be taken for granted on the part of every German general, Hitler was able to camouflage his party-political aims with the pretext of defending the national interests and to present the impending struggle with the Soviet Union as a dispute which must inevitably be settled - even as a war of defence, the necessity for which was made [Page 208] clear by definite information which had been received and on which depended the existence of Germany. In this way Hitler approached the fateful decision. General Jodl has testified here to the fact that, as an officer of long standing, Keitel's conscience pricked him nevertheless; and that he repeatedly but unsuccessfully raised objections, and suggested alternatives to the orders drafted. During his cross-examination by the representative of the American prosecution, the defendant Keitel has openly declared that he was aware of the illegal nature of these orders but that he had believed that he could not refuse to obey the orders of the Supreme Commander of the Army and Head of the State, whose final pronouncement in the case of all objections was: "I do not know why you are worrying; after all, it is not your responsibility. I myself am solely responsible to the German people." This is a reasoned analysis of Keitel's attitude towards the so-called ideologically based orders of Hitler. Keitel's last hope, which in many cases proved to be justified, was that the commanders-in-chief and subordinate commanders of the Wehrmacht would, at their discretion and within the scope of their responsibility, either fail altogether to apply these harsh, inhuman orders, or would apply them only to a limited degree. In view of his position, Keitel had only the choice between refusal to carry out the orders or a refusal to transmit them, in either case an act of military disobedience. I shall investigate in another connection the question of what alternative action might have been open to him. The question here is to show how Keitel came to transmit orders which indisputably violated the laws of warfare and humanity and why, by reason of his duty to obey, his sworn loyalty to the Supreme Commander and the fact that he saw in the order of the Head of the State the absolution of his own responsibility, he failed to recognize the point at which even the soldier's strict duty of obedience must end. Every soldier who has appeared here as a defendant or as a witness has mentioned the duty of allegiance. All of them, when they sooner or later realised that Hitler had drawn them and the Wehrmacht into his egotistic gamble for the highest stakes, considered their oath of allegiance as rendered to their country and believed that they must continue to do their duty in circumstances which to us and even to themselves, when they realised the extent of resulting disaster, appeared inconceivable. Not only soldiers such as Raeder, Donitz, and Jodl, but Paulus as well kept their positions and remained at their posts, and we have heard the same from other defendants. The statements of the defendants Speer and Jodl in this connection were deeply moving. The question as to whether these facts relieve the defendant Keitel of penal responsibility requires investigation. Keitel does not deny that he bears a heavy moral responsibility. He realizes that no one who played even the smallest part in this terrible drama can feel himself free from moral guilt in which he was entangled. If I nevertheless emphasize the legal point of view, I am doing so because justice Jackson in his speech on behalf of the prosecution expressly referred to the law as being the basis of your verdict, to International Law, the law of individual States, and the law which the victorious powers have embodied in the Statute. I take it that the defendant Keitel has recognized that some of Hitler's orders violated International Law. The Statute says that a soldier cannot clear himself by referring to orders given by his superiors or by his government. At the beginning of my argument I asked you to consider whether, independently of the terms of the Statute, the principle is unimpeachable that the standard determining right or wrong depends on the national concept only. THE PRESIDENT: Dr. Nelte, I see that in the next few pages you pass into the realm of metaphysics. Do not you think that part you might leave for the Tribunal to read? [Page 209] You must remember that you began your speech yesterday before the morning adjournment and you have got over seventy pages left of your speech to read. DR. NELTE: I have limited it and I shall be through by noon. THE PRESIDENT: Very well. Do you think it is necessary to read these passages about metaphysics? DR. NELTE: I want to show in these pages that they are not metaphysical forces, and that the individual is not in a position to free himself through metaphysical forces. I shall - well, I think I shall continue on Page 121, immediately following my reference to Hitler's character. Perhaps I may just read from Page 120 at the bottom. THE PRESIDENT: Very well, if you tell the Tribunal that you have limited your presentation. I think you began yesterday at a quarter past twelve. Go on then. Take your own course, but do your best to limit it, and go to Page 120 now. DR. NELTE: I am coming to paragraph three on Page 120. Hitler was the exponent of an idea. He was the representative not only of a party political programme, but also of a philosophy which divided him and the German people from the ideology of the rest of the world. As a convinced enemy of parliamentary democracy, and obsessed by the conviction that this was the true ideology, he was devoid of tolerance and the spirit of compromise. This produced an egotistic ideology which recognized as right only his own ideas and his own decisions. It led to the "Fuehrerprinzip", in which he was enthroned on a lonely height as the incarnation of this faith, blind and deaf to all misgivings and objections, suspicious of all those who he thought might constitute a threat to his power, and brutal to everything that crossed his ideological path. The outline of his character, which has been verified by the evidence, is incompatible with the prosecution's assumption that a partnership of interests might have existed between Hitler and the defendant. There was no partnership of interests and no common planning between Hitler and the men who were supposed to be his advisers. The hierarchy of the Fuehrerprinzip, in connection with the Fuehrer Order No. 1, can only admit of the conclusion that the so-called co- workers were merely mouthpieces or tools of an overwhelming will, and not men who translated their own will into deeds. The only question, therefore, which can be raised is whether these men were guilty in putting themselves at the disposal of such a system and in submitting to the will of a man like Hitler. This problem needs special examination in the case of soldiers because this submission to the will of some person, which has nothing in common with the existence of a free man, is for the soldier the basic element of his profession and of the duties of obedience and allegiance which exist for him in all political systems. The legal problem of conspiracy in the sense of the Indictment has been dealt with by my colleagues Dr. Stahmer and Dr. Horn. In the specific case of the defendant Keitel I should merely like to refer to two sentences of the speech as the starting-point of my statements: 1. "It is not sufficient that the plan is common to them all; they must know that it is, and each one of them must voluntarily accept the plan as his own. 2. That is why a conspiracy with a dictator at the head is a contradiction in itself. The dictator does not enter into a conspiracy with his followers; he concludes no agreement with them; he dictates." Dr. Stahmer has pointed out that no one therefore, acting under or because of pressure, can be a conspirator. I should like to modify this as regards the circle to which the defendant Keitel belonged. To say that the defendants belonging to the military branch acted because of or under pressure, does not accurately represent the real circumstances. It is correct to say that soldiers do not act voluntarily, i.e., of their own free will. They must do what they are ordered, [Page 210] whether or not they approve of it. Accordingly, when soldiers engage in action, their free will is eliminated, or, at least, not taken into consideration; it will be eliminated in every case because of the nature of the military profession, and in case of the application of the Fuehrerprinzip it cannot appear as a determining factor in the origination and execution of orders in the Wehrmacht. In this military sphere, therefore, we are not dealing with an abstract and therefore theoretical deduction, but with a conclusion which is bound to result from the nature and practice of the military profession, when we say: "The function of the defendant Keitel was based on military orders. The activity of the defendant Keitel with regard to the origination of orders, decrees and other measures by Hitler, even in so far as they are criminal, cannot therefore be considered as that of a partnership, i.e., as the result of a common plan or conspiracy." Keitel's activity in regard to the execution of orders consisted in the due transmission of orders in the Operations Sector and in the due execution of orders concerning the administration of the war, i.e., the so- called "Ministerial Sector". No matter how this activity in itself could be qualified in terms of the penal code, the prosecution has, I think, submitted so far nothing which could refute this consideration as to a conspiracy.
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